L. Conrad v. Bureau of Driver Licensing ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lucas Conrad, :
Appellant :
:
v. : No. 603 C.D. 2019
: SUBMITTED: November 22, 2019
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 7, 2020
Lucas Conrad (Licensee) appeals from the April 15, 2019 Order of the Court
of Common Pleas of Chester County (Trial Court), which denied his statutory appeal
from the one-year suspension of his operating privilege imposed by the Department
of Transportation, Bureau of Driver Licensing (DOT). DOT imposed the one-year
suspension pursuant to Section 1547(b)(1)(i) of the Vehicle Code, commonly known
as the Implied Consent Law, due to Licensee’s refusal to submit to chemical testing
following his arrest for driving under the influence of alcohol or a controlled
substance (DUI).1 We affirm the Trial Court’s Order.
1
Section 1547(b)(1)(i) of the Implied Consent Law provides:
(b) Civil penalties for refusal.—
(1) If any person placed under arrest for a violation of [S]ection 3802 [of
the Vehicle Code (relating to DUI)] is requested to submit to chemical
testing and refuses to do so, the testing shall not be conducted but upon
Background
In the early morning hours of November 18, 2017, Officer Ryan Kushner of
the Southern Chester County Regional Police Department was on patrol in New
Garden Township, Pennsylvania, when he observed a black Ford Ranger being
driven erratically. Notes of Testimony (N.T.), 2/21/19, at 4-5. Officer Kushner
activated his patrol vehicle’s overhead lights and effectuated a traffic stop of the
Ford Ranger, which was being operated by Licensee. Id. at 5. Officer Kushner
“detected a strong odor of alcoholic beverage emanating from inside the vehicle”
and observed that Licensee’s “eyes were glassy and bloodshot.” Id. at 6. When
asked whether he had been drinking that night, Licensee stated that “he had two
Coors Lights.” Id.
Officer Kushner asked Licensee to exit his vehicle to perform field sobriety
testing. Id. The officer administered the horizontal-gaze nystagmus test, the walk-
and-turn test, and the one-leg-stand test to Licensee. Id. Licensee displayed signs
of impairment on two of the tests. Id. Officer Kushner then asked Licensee to
submit to a portable breath test, but he refused. Id. at 8.
Officer Kushner took Licensee “into custody for suspicion of DUI” and
transported him to a police substation in West Grove Borough for a breath test. Id.
notice by the police officer, [DOT] shall suspend the operating privilege of
the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
75 Pa. C.S. § 1547(b)(1)(i).
2
Licensee consented to the breath test after Officer Kushner read to Licensee the
implied consent warnings contained in DOT’s DL-26A Form.2 Id. at 8-9.
At the police substation, Patrolman First Class (PFC) Joseph Cooper, a
certified breath test operator, administered the breath test to Licensee. Id. at 8, 13.
PFC Cooper utilized a DataMaster DMT breathalyzer device, which had been
properly calibrated at that time. Id. at 14. After the requisite 20-minute observation
period, PFC Cooper gave Licensee three opportunities to supply a valid breath
sample, but Licensee did not provide enough breath to register a proper sample. Id.
at 9-10, 16-17. Because Licensee did not provide two consecutive, sufficient breath
2
The DL-26A Form that Officer Kushner read to Licensee stated:
It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol or a controlled
substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of breath.
3. If you refuse to submit to the breath test, your operating privilege will be
suspended for at least 12 months. If you previously refused a chemical test or were
previously convicted of driving under the influence, you will be suspended for up
to 18 months. In addition, if you refuse to submit to the breath test, and you are
convicted of violating Section 3802(a)(1) (relating to impaired driving) of the
Vehicle Code, then because of your refusal, you will be subject to more severe
penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code.
These are the same penalties that would be imposed if you were convicted of
driving with the highest rate of alcohol, which include a minimum of 72
consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of
five years in jail and a maximum fine of $10,000.00.
4. You have no right to speak with an attorney or anyone else before deciding
whether to submit to testing. If you request to speak with an attorney or anyone
else after being provided these warnings or you remain silent when asked to submit
to a breath test, you will have refused the test.
N.T., 2/21/19, Ex. C-1 (bold in original).
3
samples, the officers deemed his failure to complete the breath test a refusal. Id. at
20.
On December 11, 2017, DOT mailed a notice to Licensee stating that his
operating privilege would be suspended for one year, effective January 15, 2018, for
his refusal to submit to chemical testing on November 18, 2017. Licensee timely
appealed to the Trial Court, which held an evidentiary hearing on February 21, 2019.
At the hearing, DOT presented the testimony of Officer Kushner and PFC
Cooper. Officer Kushner testified that he was present in the room when PFC Cooper
administered the breath test to Licensee. According to Officer Kushner, Licensee
“was given three separate opportunities to take the test, all of which were deemed
incomplete because he didn’t provide enough breath to register a proper sample after
three attempts.” N.T., 2/21/19, at 9-10. Officer Kushner further testified that “[a]t
that time[,] [Licensee] told us both that he has asthma and that was the reason why
he could not perform the test properly.” Id. at 10.
PFC Cooper testified that before administering the breath test to Licensee, he
“explained the test to [Licensee], that he had to blow properly twice into the
instrument to perform the test.” Id. at 17. He also instructed Licensee “to give a
nice steady breath until . . . I tell him to stop breathing, blowing.” Id. Although
Licensee blew into the device, he “failed to give a proper breath sample.” Id.
PFC Cooper further testified that “during the test[,] [Licensee] did say that he
had asthma, but he wasn’t exhibiting any things that would relate to asthma.” Id. at
19. PFC Cooper testified, “I didn’t view any labored breathing with him. He wasn’t
having any labored breathing . . . . He wasn’t having any type of asthma attack.” Id.
PFC Cooper testified that Licensee did not provide two consecutive, sufficient
breaths in order to complete the breath test. Id. at 20.
4
Licensee testified that he consented to the breath test after Officer Kushner
read the warnings on the DL-26A Form. Id. at 27-28. Thereafter, “after the
observation period[,] I took the [b]reathalyzer exam, and I had never done one
before[,] although [PFC] Cooper kind of said that he explained it to me.” Id. at 29.
Licensee testified that during the test, he was “under stress” and informed PFC
Cooper that he “had an asthma condition.” Id. at 30. Licensee believed that he was
experiencing an asthma attack because “it felt like someone was stepping on my
chest.” Id. at 31. Licensee testified that he was aware that he “had to give two deep
lung breaths in rapid succession” to complete the breath test; however, the officers
did not tell him that if he failed to do so, it would be registered as a refusal. Id.
Licensee acknowledged, however, that he was “not able to provide those breaths no
matter if they told me or not.” Id. at 32. On cross-examination, Licensee testified
that he did not inform the officers that he was having an asthma attack because he
did not believe he had to. Id. at 33-34.
Licensee also presented the testimony of Andrew Brown, M.D., who is board-
certified in internal medicine and pulmonary disease. Id. at 37. Dr. Brown testified
that he examined Licensee for the first time on November 9, 2018, almost one year
after Licensee’s DUI arrest. Id. at 37, 42. According to Dr. Brown, Licensee
informed him that “he had a history of asthma since 2007.” Id. at 38. Dr. Brown
testified that he “performed a thorough examination and . . . pulmonary function
studies” on Licensee. Id. at 37. According to Dr. Brown, “during that office visit[,]
[Licensee] had a normal exam and he also had normal breathing studies,” but the
tests revealed that Licensee had “hyper[-]responsive airways, which is the hallmark
of asthma.” Id. at 37-38.
5
Dr. Brown testified, to a reasonable degree of medical certainty, that
Licensee’s testimony regarding what transpired during the breath test on November
18, 2017 was “consistent with an asthmatic condition.” Id. at 38. Dr. Brown
explained that asthma “patients can just present with a feeling of chest heaviness.
They don’t have to be wheezing. They don’t have to be coughing or have any other
manifestations of asthma to be in an asthmatic attack.” Id. at 40.
On cross-examination, Dr. Brown testified that he based his opinion testimony
on the history that Licensee verbally related to him. Id. at 42-43. Dr. Brown did not
review any prior medical records because Licensee “didn’t provide any medical
records” to him. Id. at 43. Dr. Brown testified that at the time he examined Licensee,
“I believe he told me that he was arrested for a DUI and that he had asthma. I don’t
recall if he told me he was having an asthma attack during the [breath test].” Id. at
44.
Dr. Brown testified that he had not heard of the DataMaster DMT device
before the hearing. Id. Dr. Brown also testified that he was not familiar with the
exact force of expiratory volume required to satisfy a breathalyzer test, the length of
breath needed to satisfy the test, how hard a person needs to blow into the device to
complete the test, or the lung capacity needed to perform the test. Id. at 44-45. When
asked if he was certain that Licensee had an asthma attack on November 18, 2017,
Dr. Brown replied, “I wasn’t there, so I don’t know.” Dr. Brown further testified:
I’m not forming an opinion as to whether or not [Licensee] was having
an asthma attack. My medical opinion is that he has a history of asthma.
Asthma is diagnosed clinically. And the [pulmonary] test [I performed]
supports the fact that he has hyper[-]responsive airways which is
consistent with asthma. I’m not forming an opinion as to what
transpired when [Licensee] was arrested and was asked to blow into
the [b]reathalyzer.
6
Id. at 46 (emphasis added).
Following the hearing, the Trial Court denied Licensee’s statutory appeal and
reinstated the one-year suspension of his operating privilege. In its subsequent Pa.
R.A.P. 1925(a) Opinion, the Trial Court made the following factual findings:
[Licensee] did not tell the police officers that he was suffering from an
asthma attack. He did tell them that he suffered from an asthma
condition[,] which he differentiated from an asthma attack. The
testimony, which we credit, was that [Licensee] was not exhibiting any
signs of an asthma attack. [Licensee] testified that he has an inhaler,
but there is no evidence that at any time he asked to use the inhaler.
....
[Dr. Brown] did not opine that [Licensee] was suffering an asthma
attack at the time he was attempting to perform the breath tests.
Although the doctor testified that he could not determine whether or not
[Licensee] was having an asthma attack at the time of the incident
because [Dr. Brown] was not present, he also testified that he heard
[Licensee’s] testimony and could only testify that [Licensee’s]
testimony was consistent with an asthmatic condition. . . . The doctor
was not asked and did not opine that the inability of [Licensee] to give
adequate breath samples was caused by an asthma attack. Consistent
with and caused by are two entirely different things.
Trial Ct. Op., 7/30/19, at 4-5 (internal citations omitted) (emphasis in original).
Therefore, the Trial Court concluded that “the evidence fail[ed] to persuade us that
[Licensee] was suffering an asthmatic attack at the time he was attempting to provide
breath samples” and Licensee’s medical evidence “fail[ed] to demonstrate that his
failure to provide adequate breath samples was caused by a medical condition.” Id.
at 3-4. Licensee now appeals to this Court.3
3
In an appeal arising from a suspension of a licensee’s operating privilege, our scope of
review is limited to determining whether the Trial Court’s decision is supported by substantial
7
Issues
(1) Was Licensee’s refusal to submit to chemical testing knowing and
conscious, where Licensee was never informed that his failure to produce two
sufficient breath samples would be deemed a refusal?
(2) Did Licensee establish that he was physically incapable of completing
a breath test due to a medical condition?
(3) Were Licensee’s due process rights violated by the requirement that he
present competent medical evidence to establish his physical inability to complete a
breath test?
(4) Was the Trial Court required to make findings of fact at the conclusion
of the de novo hearing or when it issued its Order denying Licensee’s statutory
appeal?
Analysis
To support the suspension of a licensee’s operating privilege under the
Implied Consent Law, DOT must prove that the licensee: (1) was arrested for DUI
by an officer who had reasonable grounds to believe that the licensee was operating
a vehicle while under the influence of alcohol in violation of Section 3802 of the
Vehicle Code; (2) was asked to submit to a chemical test; (3) refused to do so; and
(4) was warned that his refusal might result in a license suspension and would result
in enhanced penalties if he were later convicted of DUI. Martinovic v. Dep’t of
Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). Once
DOT satisfies its burden of proof, the burden shifts to the licensee to prove that
evidence, whether the Trial Court committed an error of law, or whether the Trial Court manifestly
abused its discretion. Pappas v. Dep’t of Transp., Bureau of Driver Licensing, 669 A.2d 504, 507
n.4 (Pa. Cmwlth. 1996).
8
either: (1) his refusal was not knowing and conscious; or (2) he was physically
incapable of completing the chemical test. Id.; see Kollar v. Dep’t of Transp.,
Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).4
1. Knowing and Conscious Refusal
First, Licensee asserts that his refusal to submit to chemical testing was not
knowing and conscious because the officers never informed him, by reading the DL-
26A Form warnings or otherwise, that his failure to provide two sufficient breath
samples would be deemed a refusal. Licensee claims that he voluntarily consented
to the breath test and gave his best effort to complete the test, so his “deemed” refusal
for failure to supply adequate breath samples was neither knowing nor conscious.
Licensee’s position, however, is contrary to both the requirements of the Implied
Consent Law and our Court’s precedent.5
Our Court has held that a licensee’s failure to provide two consecutive,
sufficient breath samples, absent a proven medical reason that precludes him from
doing so, constitutes a refusal as a matter of law. Quick v. Dep’t of Transp., Bureau
of Driver Licensing, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007); see 67 Pa. Code §
77.24(b)(1) (stating that “[t]he procedures for alcohol breath testing shall include, at
a minimum . . . [t]wo consecutive actual breath tests, without a required waiting
4
“Whether the conduct at issue constitutes a refusal is a question of law reviewable by this
Court.” Lemon v. Dep’t of Transp., Bureau of Driver Licensing, 763 A.2d 534, 538 (Pa. Cmwlth.
2000).
5
In his Pa. R.A.P. 1925(b) Concise Statement of Errors Complained of an Appeal (Rule
1925(b) Statement), Licensee also argued that the officers never informed him that he had to
provide two consecutive, valid breath samples to successfully complete the breath test. See
Original Record Item No. 13, at 1. However, Licensee has abandoned that argument in his
appellate briefs filed with this Court. See Licensee’s Reply Br. at 1. In any event, the Trial Court
found, based on the credible testimony of PFC Cooper, “that it was made clear to [Licensee] that
he had to give two (2) consecutive[,] adequate breath samples in order to be considered to have
submitted to testing.” Trial Ct. Op., 7/30/19, at 2.
9
period between the two tests”) (emphasis added). Moreover, the “failure to complete
a breathalyzer test, whether or not a good faith effort was made to do so, constitutes
a refusal per se to take the test.” Sweeney v. Dep’t of Transp., Bureau of Driver
Licensing, 804 A.2d 685, 687 (Pa. Cmwlth. 2002) (en banc) (emphasis in original);
see Dep’t of Transp., Bureau of Driver Licensing v. Kilrain, 593 A.2d 932, 935 (Pa.
Cmwlth. 1991) (en banc) (“Anything less than a completed breathalyzer test which
registers a blood alcohol reading on the breathalyzer constitutes a refusal.”).
Contrary to Licensee’s contention that the officers were required to explain
what conduct constitutes a “refusal,” our case law holds that the only warnings an
officer is required to give a licensee are those required by the Implied Consent Law
and the Pennsylvania Supreme Court’s decision in Department of Transportation,
Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989).6 Negovan v. Dep’t
of Transp., Bureau of Driver Licensing, 172 A.3d 733, 736 (Pa. Cmwlth. 2017). The
Implied Consent Law does not require that the warnings “contain any specific
wording.” Yourick v. Dep’t of Transp., Bureau of Driver Licensing, 965 A.2d 341,
345 (Pa. Cmwlth. 2009) (en banc). Rather, the warnings “must merely ‘inform’ a
licensee that his[] ‘operating privilege will be suspended upon refusal to submit to
chemical testing.’” Id. (quoting 75 Pa. C.S. § 1547(b)(2)(i)).
6
In O’Connell, the Supreme Court held:
[W]here an arrestee requests to speak to or call an attorney, or anyone else, when
requested to take a breathalyzer test, we insist that in addition to telling an arrestee
that his license will be suspended for one year if he refuses to take a breathalyzer
test, the police instruct the arrestee that such rights are inapplicable to the
breathalyzer test and that the arrestee does not have the right to consult with an
attorney or anyone else prior to taking the test.
555 A.2d at 878.
10
Recently, we rejected similar claims challenging the adequacy of implied
consent warnings regarding chemical test refusal in two unreported decisions,
Flaherty v. Department of Transportation, Bureau of Driver Licensing (Pa.
Cmwlth., No. 635 C.D. 2017, filed May 11, 2018), and Albright v. Department of
Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 124 C.D. 2019, filed
November 7, 2019).7 In each case, the trial court determined that the warnings in
DOT’s DL-26A Form were deficient because they did not advise licensees that they
had to provide two valid breath samples to satisfactorily complete a breath test, nor
did they advise licensees that the failure to complete two breath tests would
constitute a refusal. On appeal, the Flaherty Court explained:
[T]he applicable statutes and regulations reveal no requirement that an
officer warn a licensee, before testing begins, that two breath tests are
required by [DOT’s] regulations. Section 1547(b)(2) requires only that
an officer warn that operating privileges “will be suspended upon
refusal to submit to chemical testing.”
Flaherty, slip op. at 12-13 (citation omitted) (emphasis removed). In Flaherty, we
rejected the licensee’s argument that she was not sufficiently warned that two breath
tests were required to avoid a refusal and the suspension of her operating privilege:
[The officer] testified that he told [the l]icensee that she had to submit
to two breath tests. . . . [The l]icensee argued at the hearing that she
did not refuse the breath test and, to the contrary, stated that she
submitted to the breath test twice, which supports [the officer’s]
testimony that he told her that she had to submit to two breath tests. . .
. However, [the l]icensee failed to provide a sufficient breath sample
during the second test, as proven by the printouts from the breathalyzer
7
See Cmwlth. Ct. Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a) (stating
that an unreported panel decision of this Court, issued after January 15, 2008, may be cited for its
persuasive value only).
11
DOT entered into evidence, which, under the law, constituted a per se
refusal.
Id., slip op. at 13-14 (internal citations omitted) (emphasis added); accord Albright,
slip op. at 11-12. Therefore, in both Flaherty and Albright, we reversed the trial
court’s orders and reinstated the suspension of the licensees’ operating privileges
based on their deemed refusals to submit to chemical testing.
In this case, the record establishes that Officer Kushner read the DL-26A
Form verbatim to Licensee, and PFC Cooper verbally explained to Licensee that a
successful breath test required two valid breath samples. N.T., 2/21/19, at 8-9, 17;
Trial Ct. Op., 7/30/19, at 2. Despite his efforts to do so, Licensee failed to supply a
valid breath sample after three attempts. Our Court has specifically rejected the
position that “all that is required to submit to the [chemical] test is to manifest an
intention to take the test and to make an attempt to take the test.” Kilrain, 593 A.2d
at 934. Rather, “this [C]ourt has long required more than mere verbal assent to take
the test and has required that the licensee actually take and complete the test.” Id.
(emphasis added).
Accordingly, based on the credible evidence of record, we conclude that
Licensee’s failure to successfully complete the breath test constituted a per se refusal
under our case law.
2. Physical Inability to Complete Breath Test
Second, Licensee argues that he presented sufficient, competent evidence to
prove that he was physically incapable of completing the breath test due to a medical
condition. We disagree.
It is well settled that a licensee has a duty to inform the police officer of any
known medical condition that is not obvious and may affect the licensee’s ability to
perform the requested chemical test. Whistler v. Dep’t of Transp., Bureau of Driver
12
Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp.,
Bureau of Driver Licensing, 752 A.2d 456, 459-60 (Pa. Cmwlth. 2000). Although
it is undisputed that Licensee informed the officers that he had an asthma condition
at the time of the test, we conclude that Licensee failed to satisfy his burden of
proving that he was physically incapable of completing the breath test due to that
condition.
“[W]here a licensee suffers from a medical condition that affects his ability to
perform the test and that condition is not obvious, [a] finding that [the licensee] was
unable to take the test for medical reasons must be supported by competent medical
evidence.” Lemon, 763 A.2d at 538 (emphasis added). Medical evidence must be
unequivocal to support a licensee’s contention that he was incapable of making a
knowing and conscious refusal to submit to chemical testing. Dep’t of Transp.,
Bureau of Driver Licensing v. Wilhelm, 626 A.2d 660, 663 (Pa. Cmwlth. 1993).
“Equivocal statements that a [licensee’s] condition ‘could’ have or ‘may’ have
prevented him from performing the breathalyzer test properly are insufficient to
meet th[e] requirement [of competent medical evidence].” Id. For medical evidence
to be deemed competent, “[the licensee’s] expert witness need only tender an
opinion with a reasonable degree of medical certainty.” Barbour v. Dep’t of Transp.,
Bureau of Driver Licensing, 732 A.2d 1157, 1160 (Pa. 1999). Moreover, if the
licensee’s “inability to make a knowing [or] conscious refusal of testing is caused in
whole or in part by [the] consumption of alcohol, the licensee is precluded from
meeting [his] burden as a matter of law.” Kollar, 7 A.3d at 340.
We conclude that Dr. Brown’s testimony was too equivocal to prove that
Licensee was physically unable to complete the breath test due to an asthma attack.
Dr. Brown testified that “if [a person is] in the midst of an asthma attack[,] it will
13
interfere with [him] giving a full expiration [of breath].” N.T., 2/21/19, at 39.
However, Dr. Brown did not opine, to a reasonable degree of medical certainty, that
Licensee suffered an asthma attack on November 18, 2017 that prevented him from
completing a breath test, because “I wasn’t there, so I don’t know.” Id. at 46. Dr.
Brown could only opine that his clinical findings during his examination of
Licensee, one year after the breath test, were “consistent with an asthmatic
condition.” Id. at 40, 50. As the Trial Court correctly determined:
[Dr. Brown] could only testify that [Licensee’s] testimony was
consistent with an asthmatic condition. . . . The doctor was not asked
and did not opine that the inability of [Licensee] to give adequate breath
samples was caused by an asthma attack. Consistent with and caused
by are two entirely different things.
Trial Ct. Op., 7/30/19, at 4-5 (emphasis in original); see Scott v. Dep’t of Transp.,
Bureau of Driver Licensing, 6 A.3d 1047, 1052 (Pa. Cmwlth. 2010) (“[W]e agree
with DOT that [the doctor’s] testimony was equivocal on the question of whether
[the l]icensee, in fact, suffered a panic attack the evening of her arrest, which
prevented her from making a knowing and conscious refusal to submit to chemical
testing.”).
Our Court has also held that where a medical expert is unaware of what is
required to satisfy the requirements of a breathalyzer test, the expert’s testimony that
the licensee was physically unable to perform the breath test is not competent.
Whistler, 882 A.2d at 541. In Bridges, we rejected a medical expert’s testimony in
a license suspension appeal because he was unable to opine whether the licensee’s
failure to complete the breath test was caused by a pulmonary condition, as follows:
A review of [the doctor’s] testimony reveals that he did not provide
substantial evidence necessary to support a finding that [the l]icensee
could not produce the breath necessary to successfully complete the test
14
due to a medical condition. [The doctor] testified that he was not aware
of the exact forced expiratory volume required to satisfy the
requirements of the breathalyzer test, that he was not aware of the
period of time that a breath is needed to be sustained for the test or how
hard a person needs to blow in order to satisfy the requirements of the
test. Since Wilhelm holds that [the doctor’s] lack of knowledge makes
his testimony equivocal or incompetent because he did not know what
lung capacity was required in order to perform the test, such evidence,
being incompetent, cannot sustain the trial court’s conclusion.
Although [the doctor] opined that [the l]icensee would have had
significant difficulty completing the breathalyzer test due to his
pulmonary disease, the doctor was without knowledge of the specific
amount of breathing capacity required by the particular machine used
to perform the test properly. Mere difficulty in breathing does not mean
that [the l]icensee did not have the lung capacity to perform the test
even with the acknowledgement of his medical condition.
752 A.2d at 460 (footnote omitted) (emphasis added).
Here, Dr. Brown admitted that he had not heard of the DataMaster DMT
device before the hearing. N.T., 2/21/19, at 44. Dr. Brown also testified that he was
not familiar with the force of expiratory volume required to satisfy a breathalyzer
test, the length of breath needed to satisfy the test, how hard a person would need to
blow into the device to complete the test, or the lung capacity needed to perform the
test. Id. at 44-45. Significantly, Dr. Brown testified, “I’m not forming an opinion
as to whether or not [Licensee] was having an asthma attack [at the time of the test].
My medical opinion is that he has a history of asthma. . . . I’m not forming an opinion
as to what transpired when he was arrested and was asked to blow into the
[b]reathalyzer.” Id. at 46 (emphasis added). This testimony was not competent to
prove that Licensee’s failure to compete the breath test on the night of his arrest was
caused by an asthma attack. See Whistler, 882 A.2d at 541; Bridges, 752 A.2d at
460.
15
Moreover, Officer Kushner credibly testified that when he arrested Licensee,
he “detected a strong odor of alcoholic beverage emanating from inside the vehicle”
and observed that Licensee’s “eyes were glassy and bloodshot.” N.T., 2/21/19, at 6.
Licensee also informed Officer Kushner that he had been drinking alcohol that night.
Id. However, Dr. Brown failed to offer any opinion as to whether Licensee’s failure
to complete the breath test was caused by his alcohol consumption on the night in
question, rather than by a medical condition. See Kollar, 7 A.3d at 340.
Based on the evidence of record, we conclude that Dr. Brown’s testimony was
equivocal as to whether Licensee actually suffered an asthma attack at the time of
the breath test that prevented him from providing an adequate breath sample. Dr.
Brown also did not rule out Licensee’s alcohol consumption as the cause of his
inability to perform the breath test. Therefore, we conclude that Licensee failed to
prove, by competent medical evidence, that he was physically unable to provide a
valid breath sample at the time of the test.
3. Due Process Violation
Next, Licensee asserts that the requirement that he provide competent medical
evidence of his physical inability to complete a breath test violated his due process
rights. According to Licensee, such a requirement is “fundamentally unfair” because
“the finder of fact is essentially instructed to disbelieve a [licensee] who testifies
under oath that he gave it his best effort [to supply a breath sample], unless he hires
a medical doctor to testify and the medical doctor testifies to exactly the right
things.” Licensee’s Br. at 23. We conclude that this claim lacks merit.
Licensee acknowledges that the Trial Court was bound by this Court’s
precedent setting forth a licensee’s burden of proof in a chemical test refusal case,
but he claims that the application of such precedent unfairly favors DOT and
16
prejudices licensees. In support of this assertion, Licensee relies solely on a
dissenting opinion in Kilrain, 593 A.2d at 936-39 (Pellegrini, J., dissenting).
However, a dissenting opinion is not binding precedent.
There is nothing unfair about requiring a licensee who claims that he was
physically incapable of completing a breath test due to medical condition to offer
competent medical evidence to support that assertion. Licensee was afforded a
hearing de novo conducted by an independent factfinder, who permitted Licensee to
offer the testimony of his medical expert, Dr. Brown. However, Dr. Brown’s
testimony was equivocal as to whether Licensee actually suffered an asthma attack
at the time of the chemical test that prevented him from providing an adequate breath
sample. In other words, Licensee’s failure to satisfy his burden of proof was not due
to a denial of due process, but to his own failure to offer competent medical evidence.
As discussed in Sections 1 and 2 of this Analysis, supra, we conclude that the
Trial Court correctly applied this Court’s precedent in determining that Licensee
failed to satisfy his burden of proof. Therefore, we reject Licensee’s due process
claim.
4. Trial Court’s Findings of Fact
Finally, Licensee contends that the Trial Court erred in failing to make
findings of fact either at the conclusion of the de novo hearing or when it issued its
Order denying Licensee’s appeal. According to Licensee, “in order for a potential
appellant to make an intelligent decision about whether to appeal the [trial] court’s
decision, or what issues to raise on appeal, it is necessary for the [trial] court to make
findings of fact, and make those [f]indings[,] at the latest, when deciding the case.”
Licensee’s Br. at 16. We disagree.
17
After conducting a de novo hearing, if the trial court decides that the license
suspension was properly imposed, the trial court must enter an order denying or
dismissing the appeal. Nothing more is required of the trial court unless the licensee
files an appeal with this Court in accordance with Section 762(a)(3) of the Judicial
Code, 42 Pa. C.S. § 762(a)(3).
Once an appeal is filed, Pennsylvania Rule of Appellate Procedure 1925(a)(1)
requires that “if the reasons for the order do not already appear of record, [the trial
court] shall forthwith file of record at least a brief opinion of the reasons for the
order, or for the rulings or other errors complained of, or shall specify in writing the
place in the record where such reasons may be found.” Pa. R.A.P. 1925(a)(1).
In this case, the Trial Court complied with Rule 1925(a)(1) and responded to
the issues raised in Licensee’s Rule 1925(b) Statement by making necessary findings
of fact relevant to the issues raised. Licensee has cited no legal authority, nor have
we found any, to support his assertion that in a statutory appeal of a license
suspension, a trial court is required to issue findings of fact at the conclusion of the
de novo hearing or at the time it enters an order denying the appeal. Cf. Lemon, 763
A.2d at 537 (rejecting the licensee’s claim that the trial court erred in denying the
appeal without a supporting opinion and declining to remand, because the record
was sufficient for appellate review, the issues raised were questions of law, and this
Court may affirm the trial court on any basis).
We conclude that the Trial Court did not err in making the necessary findings
of fact in its Rule 1925(a) Opinion, rather than in its Order denying Licensee’s
statutory appeal.
18
Conclusion
Accordingly, we affirm the Trial Court’s Order.
__________________________________
ELLEN CEISLER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lucas Conrad, :
Appellant :
:
v. : No. 603 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 7th day of February, 2020, the Order of the Court of Common
Pleas of Chester County, entered April 15, 2019, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge